' The petitioners on the one hand and the private respondents on the other, in the form of panels, contested election to the seats of Nazim and Naib Nazim in Union Council No.28 Aggoki, Sialkot. The petitioners having polled 3802 votes as against 3593 votes of respondents Nos.2 and 3 were declared returned. The election was challenged by respondents Nos.2 and 3 by filing an election petition on 7-4-2001. In this election petition it was alleged that petitioner No.1 (Muhammad Khalid Waseem) 'stands disqualified from contesting the election inasmuch as there is a decree outstanding against him issued by a Banking Court at Gujranwala and execution is in progress. The respondents Nos.2 and 3 filed written statement objecting to the impleadment of Muslim Commercial Bank Limited as a party to the petition, non-verification of the election petition according to Rules and the election petition being premature. While replying the petition on merits it was admitted that Muslim Commercial Bank filed a suit against Messrs Leather Leaves (Pvt.) Ltd.
And a decree in the sum of Rs,51,78,821 was passed. It was, however, pleaded that a first appeal is pending against the said decree in the High Court. It was also admitted that the said petitioner No.1 was a party to the said suit being a Director of the said Company. It was then stated that the said petitioner holds only 3.54 per cent of the total shareholding of the said company. It was further stated that the said Bank has agreed to the adjustment of the entire claim if a sum of Rs,42,45,000 is paid in terms of the agreement. A letter of the Bank to the said effect was annexed with the reply.
It may be noted here that petitioners as well as the Manager of the said Bank put in appearance on 20-4-2001 when the case was adjourned to 4-5-2001 for reply of the said petitioners. On this date the adjournment was prayed for on behalf of the petitioners because the learned Counsel was not well. The adjournment was granted. The petitioners were directed to file their reply on 23-5-2001 and also to be present in person on the said date. On 23-5-2001 the replies were filed. Arguments of the learned Counsel were heard and the petition was allowed, with the result that the election of the petitioners was declared to be void while respondents Nos.2 and 3 were declared as duly returned.
2. Mr. Hamid Khan, learned counsel for the petitioners argues that the learned Tribunal has acted without lawful authority inasmuch as he has proceeded to decide the election petition without recording any evidence. Further contends that the mere fact that a decree was passed or that it was being executed against his clients would not make his client a person who has been "adjudged a wilful defaulter" within the meaning of section 14(j) of P.L.G.E.O.
2000. According to the learned Counsel the term "wilful defaulter" has not been defined in the said Ordinance and as such shall have to be interpreted with reference to the definition of the offences as given in the National Accountability Ordinance, 1999. Also complains that respondents Nos.2 and 3 could not have been declared elected. Rana Muhammad Arshad Khan, learned Counsel for the respondents Nos.2 and 3, on the other hand, argues that in view of the pleadings of the parties and the admitted fact that the decree had been passed and was under execution, no evidence was needed to be recorded to resolve the preliminary question as to whether or not the petitioner No.1 was qualified to contest the election. He supports the impugned judgment of the learned Tribunal.
3. I have gone through the copies of the records, appended with this writ petition. I have already reproduced the pleadings of the parties and given the details of the proceedings that took place before the learned Tribunal above. I may reproduce here section 14(j) of the P.L.G.E.O., 2000:- "Qualification for candidates and elected members.---A person shall qualify to be elected or to hold an elective office or membership of a Local Government, if he,-- ' It has not been adjudged a wilful defaulter of any tax Or other financial dues owed to the Federal, a Provincial or a Local Government or any financial institution, including utility bills outstanding for six months or more;..."
A reading of the said section would show that as stated by Mr. Hamid Khan, Advocate it is not a mere default of financial dues owed to, inter alia, any financial institution, which constitutes disqualification within the meaning of the said provision of law. The default has to be wilful and there must be some element of adjudication involved in the matter of declaring the default to be wilful. Now examining the pleadings in the light of the said provision of law, I find that it stands admitted that a decree was passed in favour of Muslim Commercial Bank Limited and against, inter alia, the petitioner N6.1; that the decree is under execution and that it remains unsatisfied. On the other hand, the petitioner No.1 relied upon a letter (Annexure "H" to the writ petition) issued by the said Bank wherein a commitment has been made for repayment of the amount somewhere in May, 2001 and a revised schedule was agreed to by the Bank. There is no dispute that the decree was passed on 15-5-1999 and the copy thereof is Annexed R/1. Filed on record by the respondents Nos.2 and 3 along with their written statement. At this stage, I may state that whereas the learned Counsel for the respondents Nos.2 and 3 stated at the Bar that no appeal stands filed against the said decree, the -learned Counsel for the petitioners was not in a position to controvert the said statement or to give any particular of the said appeal: Be that as it may, claim of the Bank before the Banking Court was that the Company through the petitioner, its Chief Executive, requested the Bank for the financial facility which was allowed from time to time that the defendants including the petitioner No.1 mortgaged their properties. The Bank then alleged that the defendants including the petitioners failed to liquidate their liabilities and a sum of Rs,50,42,358 was outstanding against the said defendants as per the statement of accounts. It was further alleged that the Chief Executive i,e, the petitioner No.1 availed the facility of master card in the sum of Rs,1,36,463.
According to the Bank the legal notices were served for payment of the said amount but the same was not paid necessitating the filing of the suit. The defence sought to be taken by the defendants including the petitioner No.1 was that only Rs,36,41,000 were owed to the Bank. The parties were heard and the learned Judge, Banking Court, Sialkot found that plausible defence had not been made out. I have noted with some interest that one of the pleas raised before the learned Banking Court was that the said master card facility was availed only by the petitioner No.1 and as such other defendants in the case cannot be held responsible to pay the said amount. The learned Banking Court then concluded that the defendants in the suit have not repaid any amount, when they were required to repay the same up to 31-12-1996. It was also noted that defendants in the case has failed to explain as to why they have not paid the outstanding amount. The decree was accordingly passed in the said amount jointly and severally against the defendants in the suit.
4. As noted by me above Mr. Hamid. Khan, Advocate for the petitioners has tried to argue that the term "wilful default" has to be construed with reference to the said NAB Ordinance, 1999. However, while going through the relevant provisions of the said Ordinance, the learned Counsel had to concede that the said Ordinance primarily being a penal, law defines wilful default as an offence and the perpetrator whereof has to be penalized in the manner prescribed in the said Ordinance.
To my mind, the definition or explanation contained in the said NAB, Ordinance are not at all relevant in construction of the term as used in 'P.L.G.E.O., 2000. The term default came for discussion before the Honourable Supreme Court of Pakistan in the case of Ghulam Muhammad Khan Lundkhor v. Safdar Ali (PLD 1967 SC 530). A case decided under the provisions of West Pakistan Urban Rent Restriction Ordinance (VI of 1959). Reference was made to the meaning of the word as given in Stroud's Judicial Dictionary which according to the contention raised before their Lordships would seem to embrace every failure by the defendant to perform his contract unless prevented by superior force over which he has no control such as stress of weather or unless hindered by the plaintiff's non-performance of some condition precedent, or unless there has been a waiver of performance. Their Lordships after recapitulating the same case-law on the subject concluded as follows at page 539 of the report:-- "The word 'default' in legal terminology necessarily imports an element of negligence or fault and means something more than mere non-compliance. To establish default one must show that the noncompliance has been due to some avoidable cause, for, a person ought not to be made liable for a failure due to some cause for which he is, in no way, responsible or which was beyond his control. It is not lightly to be presumed that the law intends to cause injustice or hardship, thus unless the Legislature has made its intention clear, that construction must be preferred which will prevent manifest injustice and obviate hardship. On this principle too the word 'default' should mean an act done in breach of a duty or in disregard of an order Or direction."
' Applying the said test to the present case, there is a finding recorded by the learned Judge, Banking Court that no explanation has been forwarded by the defendants before him for non- payment, of the amount due to the Bank. Admittedly the amount has not been paid. In fact, the decree has not been fully satisfied and was certainly not satisfied by the time the nomination papers were filed by the petitioner No.
1. I have already referred to the written statement filed by the petitioners D before the Election Tribunal and there still is no explanation forthcoming as to why the amount was not paid muchless statement of a cause recognized by law to be sufficient for non-performance of a duty or an obligation or to disregard the order contained in the decree of the Judge, Banking Court. In this view of the matter, I do hold that the petitioner No.1 stood adjudged to be a wilful defaulter within the meaning of the said section 14(j) of the P.L.G.E.O., 2000.
5. The learned Tribunal has further proceeded to declare respondents Nos.2 and 3 to be the elected Nazim and Naib-Nazim of the said Union Council No.28, Sialkot after adjudging the election of the petitioners to be void. Here, I agree with the learned Counsel for the petitioners that the learned Election Tribunal has proceeded in a manner not warranted by law declared by the superior Judiciary on the subject. I have already stated above that in the said election held on 27-3-2001, the petitioners polled 3802 votes while respondents Nos.2 and 3 polled 3593 votes. The other two panels comprising respondents Nos.4 and 5 on the one hand and respondents Nos.6 and 7, on the other polled 21 and 107, respectively. Thus, the petitioners polled votes in excess of the votes polled by all the other panels put together. It has to be seen as to whether the majority votes could have been treated as thrown away votes as has been done by the learned Tribunal. To my mind, the answer has to be in the negative. I have examined the election petition. It is true that respondents Nos.2 and 3 did make a prayer in terms of Rule 80 of P.L.G.E. Rules, 2000 that they be declared elected. However, there is not a word in the entire election petition that the said disqualification attributable to the petitioner No.1 was notorious and known in the entire constituency. On the other hand, it is 'in the election petition itself that the respondents Nos.2 and 3 came to know about the matter of the said decree and its execution sometimes after the elections. The election petition was filed on 7-4-2001 and para.4 starts as under:-- {{URDU TEXT}} If the respondents Nos.2 and 3 who were the direct contestants in the election were not aware of the said disqualification it can safely be assumed that the majority who voted for the petitioner No.1 and his co-candidate were also not aware of the said disqualifications. Needless- to state that there is not a word in the judgment of the learned Tribunal as, to why he declared respondents Nos.2 and 3 to be elected candidates after holding the election of petitioners to be void. The criteria in the matter was laid down by the Honourable Supreme Court of Pakistan quarter century back in the case of Syed Saeed Hassan v. Pyar Ali and 7 others (PLD 1976 SC 6) Mr. Justice Muhammad Afzal Cheema (as his Lordship then was) in his leading opinion thus observed at page 35 of the.
Report:-- "It may be observed with respect that on the view taken by us we hardly find any point of conflict between the aforesaid provision and the principles laid down in Halsbury's Laws of England adopted and approved by this Court in several authorities. The well-known principle in substance is that votes given for a candidate who is disqualified could be deemed to have been cast away only where the disqualification was so notorious that the electors could be presumed to be aware of it. It must be founded on some positive and definite fact existing and established at the time of poll so as to lead to the reasonable inference of wilful perverseness on the part of the electors voting for the disqualified person. Examples of the sort of disqualification that will cause votes to be thrown away are being an alien, infant, or a person convicted of felony and sentenced to a term of imprisonment exceeding twelve months and still serving the sentence, or possibly holding an office of profit under the Crown. If, however, the disqualification is not notorious and depends on legal argument or upon complicated facts and inferences it would appear that even though the candidate may be unseated by reason of his disqualification the votes given for him will not be thrown away so as to give the seat to the candidate with the nest highest number of votes."
I, therefore, find that the learned Election Tribunal has acted without lawful authority while declaring the respondents Nos.2 and 3 to be returned candidates.
6. As a result of above discussion, this writ petition is partly allowed inasmuch as while upholding the decision of the learned Election Tribunal in declaring the election of the petitioners to be void for the reasons stated therein. The order declaring the respondents Nos.2 and 3 to be elected Nazim and Naib Nazim of Union Council No.28 is set aside being without lawful authority.
7. No order as. To the costs.
8. Copy of this petition be immediately remitted to learned Chief Election Commissioner and D.R.O., Sialkot.